Home Case Index All Cases Income Tax Income Tax + AT Income Tax - 2012 (3) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2012 (3) TMI 397 - AT - Income TaxAddition on protective basis - income from undisclosed sources - credit entries supposedly in the name of the appellant found mentioned in the seized note books/ diaries of one Shri Ramnik Chawda - satisfaction u/s 158BD - Held that:- (i) Assessee’s stand was examined in the course of block assessment of RC, there also he denied having any connection with the diaries cash entries made in the handwriting of RC. (ii) During the course of search in RC’s premises and in subsequent search of the assessee’s premises, no corroborative incriminating evidence was found to suggest such cash payments or assets of said firm M/s Dev Yogi Developers. . (iii) Lower authorities have solely relied on various uncorroborated evidence including the fact that in the diary two cheuqe entries match with assessee’s record in respect of his capital contribution in the firm M/s Dev Yogi Developers, therefore, it is to be inferred that all the cash entries mentioned in RC’s seized diary belonged to the assessee. Had the paper been in the handwriting of assessee, this presumption could have some relevance, but with stark reality of the diary being written in the hand of ‘RC’ and found in his premises during the course of search; in our view, such inferences are shaky and have no legs to stand except creating a suspicion. (iv) The statutory presumption u/s 132(4A) has been raised against RC and addition confirmed in his hands by block assessment u/s 158BD. (v) The assessee had withdrawn from the firm M/s Dev Yogi Developers in April 1997 and RC was search on 4/5 Sept. 1997. Assessee on all forums contended that he was not comfortable with the partnership, which is corroborated by the fact that cheques issued by RC bounced. On measures of preponderance of probabilities also the statement of RC which is not even believed by his AO, cannot implicate the assessee without there being a corroborative evidence. There cannot be a protective assessment on the basis of above assumptions and facts with a bald direction that if the addition is not made in the hands of RC, the same should be added in the hands of the assessee. (vi) On framing of protective assessment u/s 143(3) also the argument of ld. counsel merits credence. The special provisions of the Act prescribe an assessment based on searched material itself and vests power in AO to initiate proceedings u/s 158BD read with sec. 158BC in the hands of other persons. Thus, the AO has to record satisfaction either to the effect that the seized material belonged to the searched person or the other person. In the light of foregoings, we delete the addition
|